Citation Nr: 1720258
Decision Date: 06/07/17 Archive Date: 06/21/17
DOCKET NO. 12-04 068 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah
THE ISSUES
1. Entitlement to service connection for obstructive sleep apnea.
2. Entitlement to a higher initial rating for migraine headaches, evaluated as 10 percent disabling prior to September 5, 2012, and as 30 percent thereafter.
3. Entitlement to a disability rating in excess of 10 percent for degenerative disease of the thoracolumbar spine with thoracic scoliosis.
4. Entitlement to a compensable rating for allergic rhinitis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. Hurley, Associate Counsel
INTRODUCTION
The Veteran had active duty military service from June 1990 to October 2010.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in January 2011, August 2016, and September 2016 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.
In the rating decision issued in January 2011, the RO, in pertinent part, granted service connection for recurrent headaches (migraine headaches) and assigned a noncompensable rating.
The matter of entitlement to an initial compensable evaluation for recurrent headaches was before the Board in September 2014, at which time it was remanded for further development, to include obtaining updated treatment records and a VA examination to assess the current level of severity.
Pursuant to the Board's remand directives, a VA examination was performed in March 2015. In a subsequent rating decision dated in December 2015, the RO readjudicated the issue and increased the rating for recurrent headaches to 30 percent, effective February 23, 2015. The RO, in a rating decision dated in February 2016, increased the rating for recurrent headaches to 10 percent, effective November 1, 2010, and 30 percent, effective September 5, 2012. The RO issued a Supplemental Statement of the Case (SSOC) in February 2016. Accordingly, the Board finds that there has been substantial compliance with the previous remand directives for the claim of an initial increased rating for migraine headaches. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
In the rating decision dated in August 2016, the RO, in pertinent part, continued the 10 percent disability rating for degenerative disease of the thoracolumbar spine with thoracic scoliosis and noncompensable rating for allergic rhinitis.
In the rating decision dated in September 2016, the RO denied service connection for obstructive sleep apnea.
The issues of entitlement to service connection for sleep apnea and a disability rating in excess of 10 percent for degenerative disease of the thoracolumbar spine with thoracic scoliosis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. Throughout the rating period on appeal, the Veteran's migraine headaches have been productive of symptomatology that more nearly resembles characteristic prostrating attacks occurring on an average of once a month over the last several months.
2. The Veteran's service connected allergic rhinitis has not been manifested by polyps, greater than 50 percent obstruction of nasal passages on both sides, or complete obstruction on one side.
CONCLUSIONS OF LAW
1. The criteria for a 30 percent rating, but no higher, for migraine headaches have been met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.21, 4.124a, Code 8100 (2016).
2. The criteria for a compensable rating for allergic rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.97, Diagnostic Code 6522 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
As provided for by the VCAA, VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).
The claim of entitlement to a higher initial rating for migraine headaches stems from the initial grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F. 3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
Regarding the claim of entitlement to a compensable rating for allergic rhinitis, VA notice was provided in August 2010. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board acknowledges that this VCAA notice is associated with an earlier claim for an initial increased rating for allergic rhinitis. VCAA notice errors are presumed prejudicial unless the VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, the VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F. 3d 881 (Fed. Cir. 2007). In the present case, based on the VCAA notice letter sent in August 2010, a reasonable person could be expected to understand that to succeed in an increased rating claim, that the disability in question must be shown to have increased in severity. Moreover, the RO issued a Statement of the Case (SOC) in March 2017, which outlined the pertinent laws, regulations, and rating schedule provisions in order to substantiate a claim for a higher rating for allergic rhinitis. Given this, the Board finds that sending another letter essentially the same as August 2010 would delay the adjudication without any benefit extending to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).
Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016).
Service treatment records are associated with the claims file. All identified post-service treatment records have been obtained. The Veteran has not sufficiently identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.
The Veteran was afforded VA examinations in September 2012, March 2015, and August 2016. The examinations are adequate for the purposes of the matter adjudicated herein, as they were based on consideration of the Veteran's pertinent medical history and described the current severity of the Veteran's disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).
For all of the foregoing reasons, the Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.
Legal Criteria
Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4.
In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). However, where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).
When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. §§ 4.7, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.
I. Migraine Headaches
Rating Criteria
The Veteran's migraine headaches have been assigned a 10 percent rating, effective November 1, 2010, and a 30 percent rating, effective September 5, 2012, under Diagnostic Code 8100.
Diagnostic Code 8100 assigns a 10 percent rating for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. Finally, a maximum 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Code 8100.
The Board observes that the rating criteria do not define "prostrating." Dorland's Illustrated Medical Dictionary defines "prostration" as "extreme exhaustion or powerlessness." See Dorland's Illustrated Medical Dictionary 1531 (32nd ed. 2012).
Similarly, the rating criteria also do not define "severe economic inadaptability." However, the Court has indicated that, while there need not be a showing of unemployability, at a minimum, there should be an indication that the headaches are capable of interfering with the ability to earn money from work. Pierce v. Principi, 18 Vet. App. 440 (2004).
Factual Background and Analysis
In the Veteran's Notice of Disagreement dated in March 2011, he asserted that his migraine headaches occur often and when they occurred he had to completely shut down until they passed. He further stated that prolonged use of computers and light at work triggered his headaches and caused him to have to take unscheduled breaks, which affected his productivity. 03/11/2011, Virtual VA Documents, Notice of Disagreement. Furthermore, in February 2012, the Veteran described his headaches as excruciating and stated that he had to take time away from his desk at work in order to go into dark rooms for relief from light or noises. 02/17/2012, Virtual VA Documents, VA 9 Appeal to Board of Appeals.
The Veteran's VA treatment records from May to June 2012 reveal his complaints of migraine headaches up to 3 times per month, which last 4 to 5 hours. His headaches were associated with nausea, vomiting, and light sensitivity. See 11/23/2015, VBMS, Medical Treatment Record- Government Facility, pp. 61-64, 69-71.
The Veteran was afforded a VA Examination in September 2012. He reported that he had headaches three to four times a month and they lasted one to two hours. The Veteran experienced pulsating or throbbing head pain, pain on both sides of the head, and sensitivity to light and sound. The examiner concluded that the Veteran did not have characteristic prostrating attacks of migraine headache pain or non-migraine headache pain.
The Veteran's 2013 VA treatment records indicate reports of migraines two times per week. A headache in January was described as debilitating, which caused him to stay in bed. See 11/23/2015, VBMS, Medical Treatment Record- Government Facility, pp. 18, 21. In December 2014, the Veteran reported that his headaches were increasing in frequency. See 02/07/2015, VBMS, CAPRI, p. 7.
The Veteran underwent a VA examination in March 2015. The Veteran reported migraine headaches three to four times per week, which lasted 20 minutes to an hour. He was treated with Fioricet in the past but currently used 800 mg. Ibuprofen. He reported that he was able to work but would take a break to relax. The Veteran experienced headache pain, including pulsating or throbbing head pain, pain localized on one side of his head, and sharp nerve pain. He also reported nausea, sensitivity to light and sound, changes in vision, and sensory changes. The examiner concluded that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain, with less frequent attacks over the last several months. He did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The migraine headaches impacted his ability to work. Although the Veteran had not lost any time from work, he had to step away as a means to relieve his pain. The examiner indicated that the frequency of the Veteran's headaches have increased.
The Veteran's VA treatment records from March 2015 to February 2017 indicate his reports of migraine headaches two to three or three to four times per week and symptoms sometimes remained prostrating. See 03/01/2017, VBMS, Medical Records: CAPRI, p. 2; 08/17/2016, VBMS, Medical Records: CAPRI, p. 4; 06/30/2016, VBMS, Medical Records, CAPRI, pp. 4, 13, 17, 26; 12/10/2015, VBMS, Medical Records: CAPRI, pp. 5, 16; 08/31/2016, Virtual VA Documents, CAPRI, p. 1.
After a review of the evidence, the Board finds that a rating for 30 percent for migraine headaches is warranted for the entire rating period on appeal. In 2012, the Veteran reported migraine headaches three to four times per week. From 2013 to February 2017, he reported migraine headaches two to four times per week. He described his symptoms as excruciating and debilitating at times, with associated light sensitivity, nausea, changes in vision, pain, and sensory changes.
The Board acknowledges the September 2012 VA examiner opinion in which he indicated that the Veteran did not have characteristic prostrating attacks. However, the Board notes that the Veteran is competent to report his headache symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds his assertion regarding the frequency and duration of his headaches to be credible. Accordingly, the Boards finds that the Veteran's description of his headaches show characteristic attacks occurring on average at least once a month.
The Board has considered entitlement to a rating in excess of 30 percent, but this is not supported by the evidence. The Veteran has indicated that he has not lost time from work, but rather, is able to walk away from his desk and take a break when a migraine headache commenced. 02/17/2012, Virtual VA Documents, VA 9 Appeal to Board of Appeals. The Board acknowledges that this time away from his desk likely affects his productivity at work. However, it cannot be said to have resulted in severe economic inadaptability, and thus a 50 percent rating is not warranted. 38 C.F.R. § 4.12a, Code 8100. Further in this regard, from his own reports, it does not appear that the headaches could be fairly characterized as "prolonged," in that they typically resolve in a matter of hours. There has been no showing, for example, of headaches lasting an entire day. The Board is aware that the requirements for a 50 percent rating do not expressly indicate that an all-day headache is required, nor is the Board making such finding here. Rather, the Board is simply citing a basis for comparison in reaching a finding that the headaches as presently reported are not "prolonged," in the absence of a self-contained definition of that term within the criteria itself.
II. Allergic Rhinitis
Rating Criteria
The Veteran's allergic rhinitis has been assigned a noncompensable rating under Diagnostic Code 6522.
Under Diagnostic Code 6522, a 10 percent evaluation is assigned when there are no polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A 30 percent evaluation is assigned when there are polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522.
Factual Background and Analysis
The Veteran asserts that he is entitled to a compensable rating for his service connected allergic rhinitis.
The Veteran was afforded a VA examination in August 2016. He reported sneezing, watery eyes, and itchy ears. The precipitators were warm rooms, freshly cut grass, and dust. There was no missed work or incapacitation in the past 12 months due to his allergic rhinitis. A physical examination and review of the record was performed. The examiner concluded that there was not greater than 50 percent obstruction of the nasal passage on both sides and there was not complete obstruction on the left or right side due to rhinitis. There were no nasal polyps or permanent hypertrophy of the nasal turbinates. Furthermore, there were no granulomatous conditions.
After a review of the evidence, the Board finds that a compensable rating is not warranted for the Veteran's service connected allergic rhinitis. In this regard, polyps were not present and a greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side has not been shown.
The Board has also considered whether the Veteran should be entitled to a higher rating under any other Diagnostic Codes. However, the evidence of record does not show laryngitis, laryngectomy, pharynx injuries, or granulomatous rhinitis at any time during the pendency of the appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 6504-24. Accordingly, a compensable evaluation is not warranted under alternative Diagnostic Codes.
The Board acknowledges the Veteran's assertion that his allergic rhinitis triggers his headaches. However, he is separately service connected for migraine headaches.
In sum, the Board finds that the Veteran's allergic rhinitis is not entitled to a compensable rating. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
III. Total Disability Rating Based Upon Individual Unemployability (TDIU)
Finally, the Board notes that entitlement to a TDIU is an element of all increased disability rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record is negative for evidence that the Veteran is unemployable due to his service-connected disabilities. Notably, he is currently employed and has been throughout the appeal period. Therefore, a remand or referral of this claim for consideration of entitlement to a TDIU is not necessary.
ORDER
Entitlement to an initial rating of 30 percent is granted for the entire period on appeal.
Entitlement to a compensable rating for allergic rhinitis is denied.
REMAND
Higher Rating for Spine Disability
The Board finds that additional evidentiary development is required prior to adjudicating the claim of an increased rating for degenerative disease of the thoracolumbar spine with thoracic scoliosis.
The Veteran was afforded a VA examination in August 2016. While range of motion testing results were provided, there is no indication that active and passive range of motion testing was conducted. See 38 C.F.R. § 4.59 (2016); Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, the examination is insufficient to determine the Veteran's thoracolumbar spine claim. On remand, an additional examination must be provided.
Service Connection for Sleep Apnea
The Board finds that additional evidentiary development is required prior to adjudicating the claim of service connection for sleep apnea.
The Veteran was afforded a VA examination in August 2016 and the examiner provided an addendum opinion in September 2016. The examiner assessed the sleep apnea since the time it was documented in a sleep study in December 2015. The examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by service given that it was diagnosed five years after discharge from service. The examiner indicated that a 2010 sleep study was not of record and was she was unable to review. However, the examiner based her opinion on the assumption that this sleep study was normal in order to conclude there was no diagnosis of sleep apnea in service.
After a review of the record, the Board finds that the May 2010 sleep study conducted in service is of record and should be reviewed by the 2016 VA examiner. See 07/13/2010, Virtual VA Documents, STR-Medical-Photocopy, pp. 2-10. Such study does not reveal a diagnosis of apnea, but this is not necessarily dispositive of the issue on appeal, given that the Veteran had several more months of active duty following such study. Furthermore, the examiner should take into account the Veteran's statements that his wife in service indicated that he snored and gasped and choked in his sleep during service. See 07/13/2010, Virtual VA Documents, STR-Medical-Photocopy, pp. 32-34.
In addition, the Veteran served in Iraq during his time in the military service. The examiner should review the Notice to VA Examiners, VA Considers this Veteran Exposed to Burn Pit Toxins, and assess and discuss whether this exposure to burn pit toxins is etiologically related to the Veteran's current diagnosis of sleep apnea. See 08/31/2016, VBMS, VA Memo.
Accordingly, the case is REMANDED for the following actions:
1. Schedule the Veteran for a VA examination to determine the severity of his service-connected thoracolumbar spine disability. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran's pertinent medical history.
Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted. If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply.
The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. If flare-ups are reported, the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups.
If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
2. Forward the entire claims file, including a copy of this remand, to the August 2016 VA examiner for an addendum opinion as to the etiology of the Veteran's obstructive sleep apnea. (If the examiner is not available, the file should be forwarded to another appropriate individual for an opinion. A new VA examination should be scheduled only if deemed necessary by the examiner.) Review of the claims file should be noted in the addendum report.
The examiner should opine whether it is at least as likely as not (probability of at least 50 percent) that the Veteran's obstructive sleep apnea is related to his period of active military service, including conceded exposure to burn pit toxins in Iraq.
The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner should review and discuss the May 2010 Sleep Report, the in service medical records noting that the Veteran snored, gasped, and chocked while sleeping in service, and the VA Memo Fact Sheet notice to VA Examiners regarding the Veteran's exposure to burn pit toxins. See 07/13/2010, Virtual VA Documents, STR-Medical-Photocopy, pp. 32-34; See 07/13/2010, Virtual VA Documents, STR-Medical-Photocopy, pp. 2-10; 08/31/2016, VBMS, VA Memo. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.
The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion.
3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs